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Embargo

2016-08-15

Reason for embargo

Publisher policy, 24 months after first online publication.

Abstract

In July 2012, the French Court of Cassation held that undocumented immigrants cannot be placed in police custody simply for being in the country illegally. The Court’s judgments were preceded by a flurry of contradictory administrative measures and constitutional decisions. This confusion can be traced back to two landmark decisions handed down by the Court of Justice of the European Union in the cases of El Dridi and Achughbabian, which both dealt with the EU Returns Directive. It is argued here that prohibiting the placement of undocumented aliens in police custody is the result of a unique interplay between French criminal law and European Union law. This relationship between the two systems of law has been placed under strain by the French court’s idiosyncratic interpretation of the CJEU’s decisions. In its interpretation, the Court of Cassation has contributed to the transformation of detention from an extraordinary measure of last resort into an ordinary tool for combating illegal immigration. Based on this argument, this article draws conclusions on the French judicial authorities’ balancing of individual rights and public interests in relation to aliens’ rights.

Description

types: Article

This is a pre-copyedited, author-produced pdf of an article accepted for publication in the International Journal of Refugee Law following peer review. The version of record (2014) 26 (3): 333-349 is available online at: doi: 10.1093/ijrl/eeu033. First published online: August 15, 2014. Submitted online in line with the publisher's author self archiving policy.